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tv   Key Capitol Hill Hearings  CSPAN  July 10, 2014 5:00am-7:01am EDT

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characteristics of a bank and normal ordinary high water mark. you could also have wet lands which have soils and hydra vegtation but you could also have a standing lake. all of those would be waters. determining where they are adjacent to a navigable water are the tests we're trying to develop here in this proposal. >> my time has expired. thank you. >> mr. johnson. >> thank you mr. chairman. mr. perciasepe. thank you for joining us here today. i'd like to take off a little bit on the exchange that you had with my colleague mr. collins. let me tell you why i believe that congress in general and the american people specifically don't trust the epa. you made a statement just a few
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minutes ago, you said the supreme court has said that the epa needs to do rule making. i think that's what i heard you say. i think what the supreme court actually said is that under the law, you have the authority to do rule making. i think that's what the supreme court said. i think what the american people who by the way all three branches of the federal government is subject to, the american people, i think what they expect the epa to do is to provide a responsible, regulatory environment that protects public safety, protects public health, but that does not disadvantage american businesses and american workers and cripple our economy. from the shut down of the coal industry through epa regulations, through the strangle hold that epa regulations have over our manufacturing sector, you name it. that's why the american people
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and congress don't trust the epa. let me go into a few questions here with you. you know there's enough new definitions and new ideas in this rule making that it's obvious that agencies will spend money figuring out how to actually implement this rule. it's clear that the epa is driving the bus even though the ar army corp of engineers will also be effected. it's also apparent that other agency's programs could be effected given the rule reaches all corners of the clean water act and not just the wet lands programs. so as the epa consulted with other federal agencies that have administrative responsibilities under the clean water act as well as considering the cost that these agencies will incur when the rule is implemented? >> in order to put out a proposal under the administrative procedures act and under the executive orders that we operate under in terms with the office of management and budget, our -- all proposed
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rule makings that epa or my other agency does goes through a review process for 90 days. >> what feed backs have you gotten from other agencies. does the epa know how other agencies will interpret this rule or require more resources to understand how this rule effects their ability to administer their programs. have you reviewed that from other agencies. >> we took it into account when we did the proposal. for instance, the work we did to try to identify the conservation practices that would be clearly exempt from having to have a clean water permit was something we worked on directly with the department of agriculture. >> what did the army corp of engineers say. >> they were coauthors of the rule. >> so they provided you input? >> they helped write it. >> okay. if small businesses have never
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obtained a permit under the clean water act before, how do they know if they will need to get a permit under this new rule? >> well it depends on what their action is. are they discharging pollution. >> how will they know whether their action requires it. >> if you discharge pollution, you have to get a permit. i mean it's the current law. >> well, they may know that now but have never had to do it before. how will they know if this additional rule will require them to do a permit. >> well, if you do not have -- if you're not regulated under the clean water act now under the existing -- existing regulations, you will not be regulated under this proposal. >> say this again. >> we're not expanding the jurisdiction of the clean water act. >> okay. >> unless they are operating illegally under the current regulation, they would not have
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to -- >> how long on average will it take the agency to determine -- let's say a business comes to the agency and says we think we need a permit. how long on average will it take the agency to determine whether a permit is required? >> you know, the -- i don't have any information on that right here. our estimate is that there will be a reduced time because we will have better definitions of where the jurisdiction is and so that step of trying to determine whether or not there is jurisdictional water or not which the currently goes on under the 2008 guidelines that were put out in the 19 -- 1984 regulations that are in place would be reduced. the number of those analysis would be reduced. so the corp of engineers clearly feels that they would have a reduced amount of time doing those because they would have a reduced number of those jurisdictional determinations that they would have to do. but i don't have an estimate
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from them right now or i don't know what their estimate is on that. >> okay. mr. chairman i yield back. >> thank you mr. johnson. ms. edwards. >> thank you very much mr. perciasepe for being here. i just want to say for the record that i am one of the members who actually both appreciates and respects and values the work of the environmental protection agency and the hard work that the folks at the epa do every single day to protect our water to make sure that our air is clean and that our health as a result is safe. so it is not a forgone conclusion that the members of congress don't like or respect or value the epa. i think it's important for us to clarify that for the record and than other members who feel otherwise can speak their piece
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but i've spoken mine. i want to go to some of the questions in a you tried to address earlier in your testimony. i want you to describe if you would, the very ability that exists across the country in interpretation of the scope of the clean water act following the supreme court decisions. tell me, if you would, whether other areas were considered jurisdictional by some states and not by others as that has resulted in what you describe in your testimony as a lack of clarity following those decisions. >> the clarity issue -- again we've defined in this proposal clear hydrologic science oriented approaches to determining jurisdiction as opposed to the general one under the current regulations which is will it have an effect on intestate commerce. i think it's really important. it will really instruct the field people who do this work
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mostly in the army corp of engineers to have a more consistent approach and a more consistent sense of how they get the work done. i think that that is my primary reason why i believe that this would be of significant improvement over the existing situation and i am highly confident that the comments we're getting through the normal administrative process will help us even further improve that. >> let me ask you about that normal administrative process. you issued the proposed rule. let's be clear it is a proposed rule in april. than you did extend the time period, i believe, for response because you heard from people from states and from affected individuals, companies, et cetera, that they wanted to be able to respond. so you've extended that. so now, comments are due by october 20th. is that correct? >> yes. i think it's 20th.
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21th. >> around then. needless to say it's from april, now extended october 20th. we still haven't gotten to a place where you have begun to assemble all the comments. sift through comments. review the work of the sab and than incorporate it into what might then become a final rule. is that correct. >> that's correct. again i'm being open here in saying that we have seen patterns already from our own conversations. mine personally where i think there's some things that are just people are not reading it or whatever. some are where we need to do the work that you normally do in an administrative process to improve how things are written. i think we will have more of it. i want to also mention because i think this is important to this committee one of the other reasons we extended the comment period in addition to the fact we're getting a lot of comments is that we wanted to make sure
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as i've committed that the work on the final rule would be not only aided by some of of those comments but also aligned with the science advisory board process. they are going to rule at its rule itself and look at the connectivity report associated with it. their work will be done in the fall time frame as well. so we want to make sure that we get aligned with the science advisory board. >> just to go back to an early point. do you have an estimate how lock it takes under the current guidelines to make a jurisdictional determination? >> i apologize to everyone who asked this question. i don't have some information on that. i'm happy to get whatever information we have with the corp of engineers on the current amount of time it takes to generally go through a jurisdictional -- >> i think that would be useful because i think it would help to under core why it is that we need to bring some clarity that
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would begin to refine the jurisdictional determination period because that again would help in terms of moving forward decision making. anything that you could do in that regard would be helpful. i want to further ask you if you can elaborate on the role of clean water in supporting the american economy. what does it mean when we have clean water in terms of its economic impact? >> i think we've had an opportunity to talk about this a little bit. but i will summarize here. i think there are a couple of key areas where clean water is pretty essential in addition to human consumption is agriculture. agricultural productivity in a country depends on clean water and the ability to move it around in an unimpaired, unnecessary regulations. many manufacturers require clean
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water or they end up having to spend money to treat it themselves to use it. i want to say also that many communities and quality of life in a community is improved by having water bodies near by that people feel comfortable that they can wreck reate in and around. i will point to the potomic river as an example. >> thank you. thank you mr. chairman. >> thank you ms. edwards. >> mr. brown. >> before i start my time. i have unanimous consent request. administrative perciasepe made a comment that agriculture and business are in favor of this new rule. i've got two letters one from gary black, our georgia commissioner of agriculture from department of agriculture in georgia opposing this rule as it has been presented. the other one is from chris clark whose the president and
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ceo of the georgia chamber of commerce again opposing this rule. i ask unanimous consent that these be entered into the record. >> with that objection, so ordered. >> since i haven't started my question, please restore my time. i'd appreciate that. administrator perciasepe, in four terms in congress you're one of the very best witnesses i've ever seen at filibusterering a question and not answering. it's not only to republicans but it's democrats also. now the chairman showed you a map the connectivity report map. you made a statement that you already had control over all of that property. is that correct yes or no? >> we do not control -- >> you said you control the water on all of that area in that map correct yes or no?
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>> you know i'm not going to do that. >> well, you did say that. are you expanding your authority here with this proposed rule? >> no. >> none whatsoever. >> why have the new rule then? >> because the existing rule as i mentioned is based on flawed approaches to determining jurisdiction. it's actually more broad than the supreme court has asked us to go. >> let me ask you this, than do you believe this rule improves the overall clarity of epa's jurisdiction or authority. yes or no? >> yes. >> you think it does. >> you're absolutely ip correnc. you can see the questions we're asking here. this rule is not needed. the supreme court does not tell you to take a new rule. it says you could. to me it's expanding the authority and reach of the epa. that's the reason there's so much discontent all across this country not only in my state of
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georgia but in every state in this country because you all are expanding your authority. you talked about if anybody wants to put a pollutant into water they have to get a permit. the epa has recently fairly recently, said that co 2 is a pollutant. we're all breathing out a pollutant according to your determination. now given the importance of this issue why has epa not done more original research on this issue and looked at a number of questions such as significant nexus? >> we've looked at over a thousand peer reviewed studies that have already been -- >> you just looked at the literature is that correct. you've not done any more research than looked at the literature. >> our scientists compiled a synthesis report on the existing research that exists -- >> but you've not done any original new research is that correct. yes or no?
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>> not. >> no, you have no. it looks like the epa has been cutting corners by not doing a new study. shouldn't the epa's rule making be based on sound science as determined independently by the agency. >> it is based on sound science. >> no, sir it's not. in fact you even intercepted our questions against the law as the chairman and i guess mr. cramer was talking about. you have gone against what should be done. why did epa not do a new study given the supreme court's rulings that previously rejected epa's reliance on bad banks and high water mark. why only a literature review? >> i'm not aware that the supreme court rejected bed banks and ordinary high water mark. i they they rejected in the swank opinion making jurisdictional calls solely on the basis of migratory birds
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which gets me back to the intestate commerce problem of the existing regulation asking field biologist and hide rolgs. the supreme court would like us to get away from that. i want to clarify for the record, that chief justice roberts did suggest that the agency conduct a rule making. >> but what your proposed rule is so unclear that everybody, farmers, businessmen, landowners, politicians, democrats, republicans alike are requesting you all to take away this proposed rule to abandon it and do something else. i request that you do the same thing. it's beyond me why you all are continuing to do so. you're cutting with your coal rules, the president has been very clear. he wanted to shut down the coal
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industry. he said he will bankrupt any company that puts out a new coal plant. he and y'all through the epa is doing just exactly that. in fact you're shutting down 15 power plants in georgia. it's not fair to poor people and senior citizens on limited income because as the president said his policies are going to necessarily sky rocket the cost of the energy. that's exactly what you guys are doing at the epa. that's unfair. unfair to poor people. it's unfair to senior citizens who have limited income and what you're doing now is expanding the jurisdiction and scope of the corp of engineers as well as the epa. would you agree one question -- one final question since my time is up. would you agree that every drop of water that falls on this country is going to eventually wind up potentially in a navigable stream. >> that's the science of hide
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rolling. >> well, yes. >> it could end up in ground water -- >> you're going to control every piece of land and every landowner. mr. chairman, i yield back. >> but those are not jurisdictional. the back yard water is not jurisdictional. mr. chairman can i please -- >> no, we'll come back to that. mr. brown, thank you. mr. hall. >> i think this is a very interesting hearing mr. chairman. i thank you. i've learned a lot about arrogance. i agree with mr. collins. i think dizzy dean always said it ain't bragging if you could do it. i've always heard that the professor asked one of his students did he know the difference between ignorance and
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apr ap apathy. he's attempting to do what all of us are doing. trying to get you to tell us the truth and do what you say you're going to do. i thank you for holding this hearing mr. chairman. it's controversial propose that raises a lot of questions about rules potential impact on property openers, on businesses, states, and i want to examine some of these as long as i have the time. first i'd like to submit a letter in resolution for the record from the morris county commissioner's court in my district. morris county judge linda murkris writes that morris county is agains at any action the epa that would infringe upon the sovereignty of texas to appropriately regulate water for the state of texas. she continues if adopts this could increase the costly permitting requirements and infringe on private property rights and circumvent the
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legislative process and the will of the people of texas. now to go on in february, this committee heard testimony, president of the texas farm bureau, expressing farmers concern with the proposed rule and would mean more permits, more permit requirements. the threat of additional litigation against farmers and ranchers. he also expressed concern that epa seems to routinely ignore the requirement that science advisory board panels be fairly balanced. mr. administrator as you know the epa administrators office is responsible for appointing members of the agency, sciencivic advisory panels including the science advisory board. last year epa assembled a panel to review the agency draft connectivity report. a highly influential assessment that you stated would inform epa's expanded interpretation of its power under the clean water
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act. 27 experts of these panel. many were state, local or tribal leg la regulators. nine highly qualified state and local experts from the arizona department of water resources, the north carolina division of water quality and elsewhere were nominated to serve on this panel. why did the epa not appoint any of these state and local experts. similarly epa aassembled a science advisory board potential to review the agency on ongoing study of fracturing. 13 qualified scientists from state and local agencies were nominated including two from the texas commission of environmental quality. despite their vast experience mr. administrator, their experience with oil and gas regulation, none of these nominees were appointed to the 39 member board. i wonder why they weren't. would you explain in some area
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like local water quality of regulation of gas, state and local officials have more expertise than the epa. would you agree that the states have decades if not centuries of experience in some of those areas. former chairman. railroad commission is so testifi testified before this committee. i ask you, will you commit to appointing geographically diverse state and local experts on the epa's scientific potentials in the future. finally in view of the cost of the epa's proposed rules. shouldn't the states have more opportunities to provide input and shape a rule because it will bare so much of their cost. epa says it's consulted with states regarding a proposed rule but in your recent testimony before the house transportation and infrastructure committee you could not name a single state infrastructure committee that had come out in support of the rule. you promised to survey the
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states. has that survey been conducted and what methology being used to conduct the survey. it has rare reaching impoliticianations that need to be absolutely thoroughly examined. i thank you for your leadership on this commit eye. i yield back the time that i'm absolutely out of me. >> thank you mr. hall. mr. hall requests a uc to respond. >> i will respond in the record. >> you will put documents in the record. so ordered even though he is out of time. please give us a bit and than we will continue to move on. >> thank you mr. chairman. we do have a defined process for picking members of the science advisory board. it's a public process. an advertisement goes tout get nominees. you mentioned that some of those nominees came in. they are screened by the sab staff for conflicts of interest,
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and all ethics issues. and we do strive to have a diverse board. so i would certainly commit to looking at how we could continue to improve that. it is our intent to have a d diverse board. i want to absolute lay gree that the states have significant and important and we need to rely on expertise in the area of hydraulic fruacturing. if you would be willing to sent him a note on the mechanics. >> because i am going to do some switch around with my own slot. please. >> thank you mr. chairman. i appreciate your flexibility on that. first i would ask unanimous consent to submit from the record a letter from the illinois chamber of commerce in opposition to the rule gravely concerned about what they talk about what significantly add to the already unprecedented level of uncertainty our members face
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from new rule and regulations. >> uc requested. any objections to ordered. >> thank you mr. chairman. thank you administrator for being here today. it really is crucial that the epa regulations are based on science. so i appreciate you being here so that i can learn and try and explain to my constituents the process you all go through before drafting and finalizing new rules and regulations. my concerns will deal with the scientific advisory board. i hope this will be a simple yes answer but does epa hold the findings of its scientific advisory board in high esteem. >> extreme high esteem. this is certainly good to hear because science should always be the back bone of what you are doing at epa. something your administrator frequently sites and that we normally hear when receiving testimony from are this committee. interestingly enough it was not in your ten page testimony today. i also that a draft rule is just that. a draft. you have said throughout your testimony that this rule is
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something that is supposed to bring clarity to the jurisdiction that the agency already has. unfortunately as we can see from discussion today this rule is not very clear. my constituents have a number of questions about how it will be effecting them. in the draft rule does epa define what a shallow subservice hydrological connection is. is this something you leave to further examination of the literature or is it expressly defined in the rule and at what depth does water below the surface cease to be shallow and turn into ground water? >> the use of the shallow subservice water i think i'm going to say i think -- >> does it define it. >> does the epa define what subservice hydrological connection is or is that left to further examination of the literature as expressly defined in the rule. >> it's something that the science advisory board is looking at. it's something that they gave us some advice on in their draft
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statement. i want to point out and be really clear. ground water is not covered by this rule. >> so this is not zpresly defined in the rule and the depth where water ceased to be shallow surface and turn into ground water is not defined. although you're saying it is not under the rule the fact is it's not defined of when it turns into ground water. therefore it does fit under the rule. let me keep moving. my time is going to go away. in comments on the connectivity report, the siecience advisory board stated this represents an important research need for epa. considering this is still april active research need and the connectivity report is being used by epa to support the proposed rule. how does epa justify the use of shallow subsurface ground water connectivity to determine jurisdiction? >> we use -- the rule -- i think
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there are a number of different pieces to what you just suggested there but the rule uses the connection with subsurface shallow ground water as a way to determine ajaysency. the ground water, i want to be clear whether it's shallow, deep, anywhere is not covered by this rule. it's just a hydrologic tool. >> it's unclear when it goes from one to the other. if you're having trouble explaining it to us. get what my constituents are saying. >> ground water is not covered by the rule. >> but it slips into it. that's what they are saying is that it becomes -- it's undefined of when it moves from shallow subsurface hydrological into ground water. i've got less than a minute. chow a regular citizen be expected to know whether or not they are digging into something that would be ground water which as you say is exempt under the rule or shallow subsurface water
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where the cwa comes into play. is it the responsibility of the landowner to review the literature since it's not clearly defined in the rule? >> they are not not covered by the rule. >> so you're saying shallow subsurface watt certify not covered by the rule. >>? correct. it is used as a hydrologic tool for field people to determine the ajaysence ajayajaysency of . >> the actual ground water is not jurisdictional. >> this is less clear to me than what i walked in here. i think it's probably the same for my constituents. huge concern. if nothing else i hope you get the fact that we're concerned about this. s will already such a lack of clarity, this one more than anything else. we're hearing huge concern from business from farmers. i've got a great business
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community. i've got a great agriculture community in my district. they just don't understand this. they are scared to death. we need clarity. we need to take a step back. with that chairman, thank you so much for your indulgence, i yield back. >> thank you, mr. weber. >> thank you mr. perciasepe. the proposed rule askirts jurisdiction over perennial streams is that right? >> yes. >> what about intermittent streams? >> yes. >> okay. canals and ditches? >> mostly, no. >> lakes,lakes,. >> lakes yes. >> we put up a map here that is provided by the usgs that shows these features in my state or state of texas where i live. i would would love to claim it as mine, of course. i'm very proud of it. the key shows the colors that
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correspond to the features. missing from this map are wet lands, ditches and other features that the epa and the army corp of engineers claim jurisdiction over. can you see that map? >> i see the map but i want to be clear. we're not claiming jurisdiction over ditches. >> well, this map is not for regulatory purposes. we've had them made by the usgs based on some of the epa -- just some of their definitions. the map is dramatic but shockingly from what i have read of the proposed rule, the epa could go farther than what we see here. in fact the epa sites a study that estimated that the usgs maps under represent drainage networks by 64.6%. that's their quote. scale up the features covered by 60% and include wet lands and we're looking at a regulated area close to double the size of what's on this map. yet remarkably, the epa you
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claim that the proposed rule does not -- you said this in exchange with some of the orj members, does not expand the agency's authority. he asked why do you need the rule? >> there's no way that this is what congress intended. the supreme court has rebuked the agency for claiming authority over areas that are remote from waters that are navigable in fact. so why is the epa disregarding the supreme court and congressional intent. is the epa approve the other branches of the federal government. are you above the constitution? >> absolutely not. >> i would agree with that. it doesn't appear to the american public that's your mind set. let me follow-up on a question asked by chairman smith. i understand the perepa has ask them to make maps similar to every state. i think it's important that the epa release these maps as part
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of this rule making process. today's entire hearing has been what what is and what isn't covered by this proposal. as randy -- part of the randy caucus said down there is epa's answers aren't making the situation any clearer. i would add the truth isn't exactly flowing around here. the epa needs to releases need maps so our constituents can identify whether they are subject to regulation. here today will you submit to releasing these maps that the epa has made before the end of this month so that people can comment on then as part of the rule making process as the chairman has requested? >> i'm not familiar -- these maps have come up before. i have to apologize. i am actually really not familiar with them. >> you're in the dark about this? as most of our constituents are about this proposed rule.
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that's our perception out there. mr. chairman, i think that it's important enough that if this agency doesn't release the maps by the end of july that this committee compel their release. my constitute enents are confusd scared about this proposal and overreach. i think the only way we can get to the bottom of what's being planned here for regulation is to see it laid out on a map. so here today i request that you ma make available to us and the american people the maps that the epa had made from the usgs as well as the wet lands map made pi the fish and wild life service. my guess is they were created with tax payer dollars. they should be available to the tax payers in full disclosure.
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we want you to make these maps available. mr. chairman, i yield back ten seconds. >> we were discussing whether they should be a penalty box for puns. >> thank you mr. chairman. first ever all i'd like to ask unanimous consent to enter analysis of the epa's study. the water advocacy coalition is a large group of stakeholders that have come together with concerns about the rule and include everyone from farmers to home builders. the afnalysis points out flaws within the reports and draws into question the reports usefulness in a regulatory context. >> we have ucs? no objection no ordered. >> i'd also like to introduce a letter from the indiana chamber
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of commerce expressing concerns about the potential impacts of the rule on indiana's economy. >> any objections? >> so rd owed. >> this is a letter to me. i will just read the last paragraph from the indiana chamber of commerce. we ask you that stop epa from finalizing this proposed rule that could create a significant amount of uncertainty. it would impact the business community in a detrimental way. it seems like another chapter in the epa's lengthy tomorrow of bureaucratic overreach. it's time to put a stop to federal intrusion when it's occurring versus congressional past legislation. i would like to to be here and thank you for your work at the epa. i think just because we may have fiphilosophical disagreements doesn't mean you're not working hard to do your work. i thank you for that but we have some disagreements on this
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proposed rule. first of all this has been on the books for 30 years, why not? >> one of the primary drivers, this goes back to the previous exchange that the supreme court has had two separate -- more than two but two in particular where they have looked at the existing way the agency -- plural the core of engineers and the epa go about making jurisdictional determinations. where does the clean water act apply? again, where the clean water act applies will only affect anybody if they are going to discharge pollution. it doesn't affect agriculture. i want to be clear on that. but we have to change the way we go about doing that to comply with. that's -- here is where i think -- i agree with the mutual respect thing. i think we are trying to comply with what the supreme court has
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suggested is the way about going it. i think it's totally appropriate that there may be a different point of view on that. i'm not -- i'm with you on that. >> i will take you at your word on that as far as exemptions go who has the ability to eliminate exemptions. my main concern is jurisdictional here on this issue. states, local communities versus the federal government and the potential expanded jurisdiction of the federal epa. over the states. and the local communities. people in agriculture for example they are touting 54 exemptions to agriculture but who has the ability to change the exemptions once the jurisdiction is established? >> yeah, well the exemptions are -- they are outlined generally in the clean water act itself. what we're try to could is define them a little bit more clearly working with the u.s. department of agriculture particularly the exemptions that
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refer to conservation practices that take place on agricultural land. that would -- we feel they are already exempt but the need to clarify specifically what kinds of practices are exempt re what we're trying to do. we've heard from farmers that we're getting too specific and what if they did it in a slightly different way would that then not cover it. that's the kind of thing that we normally would hear and try to fix. >> because the concern i have which many of my constituents do honestly i think american people not specifically to the epa but the federal government in general that once they have jurisdiction that the rules suddenly change. think think you're seeing that in health care. i'm a health care provider as a heart surgeon where coming here. once jurisdiction at the federal level basking that away is nearly impossible and secondly the concern is that the rules will change including skemgtexes
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for agriculture for anything else. that's my concern. i do have some specific questions about farming. i appreciate your response. these are concerns from indiana form bureau that farmers have told them. for example. ditches, if a farm has a ditch that runs along the side and it carries rain water that eventually flow ties stream or river, how can they determine whether the ditches with excavated in uplands and drain only in uplands. >> well based on what you described that's what it is. it would not be jurisdictional. >> the farm term determines that or the epa determine it's. >> the core of engineers does the field work if the farmer wants to discharge pl uollution into that or something else. we try to make it clear in the rule for the first time the definition actually includes these exclusions of these ditches. >> if a farmer has a small depressionary in the farm
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fields, how can the farmer know whether these are waters that the u.s. under the proposed rule. >> they are not. >> they are not. it says that in the rule? >> you know i don't know exactly where it says that in the rule they are not because they don't meet the other definition of being a water. they don't have a bank and a high water mark. they don't have hide rick soils. they are farmed lands. >> and that's what i'm trying to get at with these questions is where the rule -- the level of uncertainty on the ground out in the communities is about the proposed rule generates these type of questions. so what needs to be cleared up because again, from my perspective, once the federal government establishes jurisdiction, retraskticting ths very difficult if not impossible and also there is concern that the rules within that jurisdiction will change and you're getting this level of uncertainty among farmers. i just did an event in my district with the indiana farm
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bureau all of these questions came up of the the main question is jurisdictional. with that i will yield back. >> rest assured, wet farm yields are not jurisdictional. just to add to be -- to help ail little bit. in almost every state. i think probably every state. the states are responsible for implementing the clean water act to the jurisdictional determination may determine where they have to do their work but the states are the ones that do virtually all of implementation. >> thank you dr. professor massy. >> i'm not a professor. >> yes, but -- never mind. very quickly. let me ask you this mr. perciasepe -- bob. >> thank you. >> do you anticipate having a larger budget at the epa next r year or a smaller budget? >> for 2015? >> yeah. >> the president's budget that
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was submitted to congress was smaller than 2014. >> okay. what's the additional cost of implementing this new rule? >> well, it's a combination between epa -- >> well, i asked you this question we met before in the transportation and infrastructure. what's the cost of implementing this rule? >> if you let me shuffle the paper, i will give you the same answer. >> i will give it to you. it was 1 to $200 million does that sound about right? >> that sounds in the ball park. >> i have the transcript. >> isn't it fiscally unreresponsible to take a 100 million to $200 million costs when you expect it to increase. >> we're doing those costs to what the economy is he so that means like 160 to $280 million. >> okay, those are processing
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expenses and mitigation expenses that might have to come into play if somebody wants to get a permit and they can do the activity but they can do mitigation. >> those are the costs we estimates of doing the permits and also doing the mitigation. >> i think it's fiscally undertake this rule that will cost you more money to implement when you know in fact the president acknowledges that your budget is going to go down. let me ask you another question. can you have science without measurements, without numbers, without units? >> for most science, you need that. i'm going to say that there's probably some that you don't but -- >> i'm looking at the rule here, i can't find any numbers. i can't find any unit measurements. definition of a flood plain.
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determine flood plain means an area bordering coastal waters that was formed under conditions with moderate to high water flows. is moderate to high a scientific term? >> i think these are terms that are used routinely in the science. >> can you convert that to gallons per minute without facts all you have is an opinion. this leaves it open to opinion. without units, you cannot have science. without measurements. let me ask you another question from the definition here. these are features that are exempt under this rule. one of them is an artificial lake or pond created by excavating and/or diking dry land. i own a farm. i built a few ponds. the last place i would put a pond is where there is dry land where is there no water.
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chow you dike dry land and create a pond for irrigation? >> well, you take an area of a stream -- i mean an area of a field or wood land where the slope is in this direction and you put up a -- >> so there's a flow of water. >> and when it rains the water comes down. >> so you get some water that's coming not just landing in the pond but from surrounding areas. >> yeah. >> so there's a flow across that land. >> yes. >> so if the goal here is to create an exemption for landowners that they can understand, why wouldn't you put a scientific unit of measuring there like what's a unit of measure for a pond or a lake? >> gallons. >> gallons. that's a little hard -- that's a good number. acre feet is another one. >> is a bigger one. >> yeah. is why wouldn't you put a definition in there that is scientific because clearly there's flow of water going into this.
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so there has to be some flow . you could define if in gallons per minute or something like that. the pond per acre feet. it's clearly not going to be on dry land if you're creating this or it wouldn't exist. you would have a dry pond. i have built a few of those, too. >> well, the concept of dry land is -- explain it to me. >> it's not currently a lake or a stream or a river. >> i think it would have to be under a roof to be completely dry. there has to be some flow. what i'm asking here is for some definition. >> it's a term of art. >> i'd like a term of science. >> when you define a bank how tall is the bank in feet. >> there's criteria for a bank and high water mark. >> so let's just -- quickly my time has almost expired. on a flood plain what are the unit to define the size and scope of a flood plain? >> normally flood plains arefre.
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that's how we define them. >> correct so why wouldn't you define a flood plain that way instead of leaving is open-ended to say that it's moderate to high water flows. would you agree that's not a scientific term moderate to high. >> there's no units or numbers. >> we've asked for help in defining the size of the flood plain. as a specific question we've canned in the proposal. >> well that's a science that's already established. i suggest you go use some science. >> so we've asked for advice on what size and how to you do that. >> well, it's very clear science. you could use science in these definitions. >> thank you. >> thank you. mr. brooks. >> thank you mr. chairman. i don't know but having heard those questions is sure seems to me that he has a doctorate. maybe we ought to give him on honorary one now. he very professor like. mr. chairman i have a letter
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from the alabama farmer's federation dated july 8th, 2014 entered into the record. >> it is my understanding that this rule relies on the quote, significant next us, end quote, test to determine what other waters would be regulated. as all high row lodhydrological connections are not significant, can you explain how the agency plans to identify what constitutes a significant connection? does the agency plan to establish some means of quantifying the significance of a hydrological connection? if so, can you provide a real world example of how the determination would be made? >> we've tried to use two key established approaches to define when it is significant. i think as many have pointed out already, i think it's worth noting that, you know, in the
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broader high rydrologic cycle, t anything can be defined as connected. significant is a very important component of how we're going to have to do work here. so we've proposed that if it's a tributary that runs all the time or seasonally as justice scalia outlined, that it would have to be -- it would have to have water in it enough that it had a defined bank, high water mark and a bed. now there are criteria for those that are defined in the science of it. if it doesn't have those characteristics then we're saying there's not enough times that water is flowing in it that it's significant. so it's not significant. that means the puddle in my back yard, my roof drains don't have those characteristics. they are so significant and not covered of the wet fields, same
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situation. for standing water, obviously if it is a lake that's wet all the time or if there's a wet land that has the characteristic soils and vegetation that is characteristic in science of what a wet land is. that would be significant. there are other issues that the supreme court has asked be considered, things like ajaysency, et cetera. if you have some of these characteristic buzz you're not adjacent we've propose add proechs to deal with that issue as well. >> dr. david sunday, a professor at the university of california berkeley has published a report on the agency's economic analysis of this rule. i will quote from his remarks. quote, epa is proposing an expansion of the definition of the term waters of the united states to include categories of
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waters that were previously never regulated as waters of the united states such as all waters in flood plains, repair areas and certain ditches. the inclusion of these waters will broaden the scope of the clean water act and will increase the cost associated with each program. unfortunately, the epa analysis relies on a flawed methodology for estimating the extent of newly jurisdictional waters that systematic ll a underestimates the impact of the definitional changes. this is compounded by the exclusion of several different types of costs and the use of a flawed benefits transfer methodology which epa uses to estimate the benefits of expanding jurisdiction. the errors, emotions and lack of transparency on epa's study are so severe to render it meaningless. how can congress or the public adequately evaluate the sciencivic and economic impacts of epa's proposal if the
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economic analysis is as problem problematic as indicated. >> we have that report. i haven't personally read it yet. we will formerly put it into the docket for this rule and we will analyze it and see what we may need to do to our economic analysis. i can tell you right often we had a discussion about this earlier. i was probably less successful than i would desire this but all flood plains are not jurisdictional waters. just the fact that it is inundated let's say annually by by a spring flood or every ten years by a ten year flood does not make it jurisdictional. it's a indicator that the water that is there all the time or under those other characteristics just mentioned to you than would be jurisdictional because they are adjacent to the other stream. we use it as a way to determine
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in the science whether it's adjacent. if you make an sulassumption ma would require a permit than you get into the situation that i think that analysis does where we said we're underestimating. i want to be more clear on that and we're going to look into that in more details. >> thank you mr. chairman. >> thank you mr. brooks. >> thank you mr. chairman. thank you mr. perciasepe pofor being here. this is the rule that fterrifie people in my state more than any other people. my questions will be very specific. i want you it know how to terrified people are. this goes -- i'm from the west i'm from wyoming where water is
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scarce. the resource about which we worry the most and fret the most. you just have people in the west completely terrified about in. i just want you to know that. part of the terrifying effects of this is that the supreme court rejected the clean water act jurisdiction over isolated ponds because they lacked a significant nexus owe navigable waters. we don't understand why the panel is not focusing on what significant nexus means. instead, this rule is focusing on connection. connectivity. the courts have repeatedly said that a connection is not enough. yet the epa is basing this rule on a report that evaluated connections. so i would argue that that is
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among the umbrella basis for our huge concerns. the western governor's concern. the western attorney's general are concerned. the western state engineers are concerned. the water users are concerned. the local water administrators are concerned. it is an enormous issue laying that ground work here are my spes icific questions. we don't understand why the epa allowed only an additional 20 day comment period on the interpret rule on the ag exemptions. there are some exemptions, 56 practices that are exempt as i understand it but there are 100 other practices that we believe should be added to this list. here is my question. please provide detailed analysis of how the national conservation resource service conservation
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practice standard for irrigation canal or lateral that's code 320 aligns with the treatment of these facilities in the proposed rule for the hearing record. >> i can't do that off the top of my head but i'm happy to do it for the record. >> fabulous. the other questions that i have are going to be for the record as well. >> okay, please provide us how the nrcs conservation practice standard for an irrigation field dish, now this ditch, this is code 388 aligns with the treatment of ditches in the proposed waters of the u.s. rule. please discuss how the nrcs standard's for a pumping plant. this is code 533, a stream crossing, that's code 578, and a structure for water control.
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this is code 587 aligned with the regulatory consequences of the water u.s. proposed rule. we need detailed written analysis of these for the hearing record. we also need an analysis in the rule making docket so people have an adequate opportunity to consider and comment on these analys analyses. these are the kind of details that have heretofore been left. when you couple the fact that this scientific committee that was assembled has, i like, two people out of 50 that are connected to tribe, state, and local water regulators. it provides no comfort for us. those two that came from state
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agencies both came from the california epa. there's almost no state agency that is more desperate from our tribes, our counties, than the california epa. the only other agency that is more desperate is the u.s. epa. so in other words, we really feel from the west that this scientific committee has no expertise in our water jurisdiction, concerns, quantities, quality, and we as i said at the beginning of the remarks, there's just no rule that terrifies us more. thank you mr. chairman. i yield back. >> thank you. hopefully staff got that list and you will be able to respond. >> it looks like we'll be able to get it somehow.
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i tried to write them all down. thank you. >> all right. thank you. now it's finally my turn. i have two letters i wish to put into the record without objection, if there's an objection i will be really worried. from my ayingation electrical districts associations of arizona and national stone and sand and graph evel association. it's opinion fascinating to listen to this. six weeks ago right down the hall we did one of those things we try to do with big legislation where you invite in a hand full of lawyers. this was an interesting group. one had actually been staff over at the epa so they weren't necessarily ideological side. we did he that sort of game theory.
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let's sort of walk through the sections of this rule and see what it models. see what he this means. how absurd could you take it. where would a court take it? i think from those sorts of discussions that's where you're picking up the stress from many of us up here. it may not be what you intended but it is what the words say and particularly in the world that we're in right now where if the words have any movement, someone will litigate on it. i know this is sort of the lightning round, let's do flood plains for a moment. in the discussion here, flood plains kept being adjacent to an active waterway. from those of us from the desert southwest, if you were ever to look at mare acopa county. third most populace county in the united states but the top part of my county have huge areas designated as flood plains even though it hey be the every
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other year monsoon season. how does that fall into this? s-
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